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Green Card Application Delays and Mandamus Petitions

Your Green Card application (I-485) has been pending for a long time. Can you file a Petition for a Writ of Mandamus to move your case along?

The first step is to look at the processing times located at . For example, the Buffalo USCIS Field Office is currently processing 80 percent of all I-485s within 19 months. A mandamus petition will likely not help if your pending application is still within normal processing times. It may not even help if it has been pending a little longer than that (say two years). The standard is unreasonable delay, not just a delay.

The next step is to decide where to file any lawsuit. In a prior post, I discuss considerations for where to file a mandamus petition. In addition to what the law requires, it is also important to look at whether the judges in the U.S. District Court where you would file any lawsuit have held they have the authority to order the government to decide your application. Here is the issue.

Federal law, specifically 8 U.S.C. 1255(a), gives the Attorney General and Secretary of Homeland Security discretion to issue green cards. In other words, they don't have to. It is entirely up to them. The statute says nothing about the time to issue the decision. A majority of courts have held that this discretion only applies to the actual decision to issue the green card (or not) and not to the pace of making the decision.

But a minority of courts have held that this statute grants the Attorney General and Secretary of Homeland Security discretion both as to the actual decision and to the time it takes to make the decision. Therefore, a court cannot decide (or lacks jurisdiction) to order the Government to move things along. This gets even more complicated when judges within the same U.S. District Court disagree. One judge in a district may say that the court can decide the issue while another judge says that the court cannot decide the issue. This is where an experienced attorney is important.

Once you determine whether the court can actually decide the case, you have to look at the case law again to see what courts in the jurisdiction consider an "unreasonable delay." Again, it depends on where you file. In most cases, a two-year delay is not seen as unreasonable. Conversely, a four-year delay is likely unreasonable. An experienced attorney can figure this out.

Finally, what steps have you and/or your attorney taken to resolve the delay without litigation? A petition for a writ of mandamus is considered a remedy of last resort. Courts like to see that you have tried to resolve it without litigation, but could not. Some steps can include reaching out to the USCIS ombudsman, contacting a federal legislator, and even contacting USCIS directly. This is very important. Even if taking these steps do not resolve the issue, they create a paper trail that can later be used in a mandamus petition.

At Aisen Law, PLLC, we are experienced with resolving immigration application delays and petitions for writs of mandamus. Please give me a call today to discuss your case.

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